FACT SHEET
RECENT LEGAL CASES: CONSTITUTIONAL ANALYSIS
In the last five years, three Court of Appeals cases and
two District Court cases have considered the
constitutionality of the military policy banning lesbians, gay
men, and bisexuals from the military.
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989),
Woodward v. United States, 871 F.2d 1068 (Fed. Cir.1989),
and Steffan v. Cheney 780 F.Supp. 1 (D.D.C.1991)(currently
on appeal) have upheld the constitutionality of the
military's policy. Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.
1992) ruled that there must be a real basis for the
military's policy other than mere prejudice of others and
remanded the case to the district court. Meinhold v. U.S.
Dept of Defense, 808 F.Supp. 1455 (C.D.Ca. 1993),
following the rationale of Pruitt, found there was no rational
basis for the military's policy and held it was
unconstitutional.
CASES FINDING THE BAN CONSTITUTIONAL
In the cases of Ben Shalom, Woodward and Steffan,
the plaintiffs argued that the military's ban violated their
federal constitutional right of equal protection. In each
case, the courts focused primarily on the military's claim
that the ban preserved "good order" and "morale." Finding
that order and morale were important to an effective
service, the courts simply accepted the military's claim
that the ban was necessary to achieve good order and
morale. None of these courts demanded from the military
an explanation of how lesbians, gay men, and bisexuals
would impair order and morale, nor did the courts require
the government to provide any concrete evidence for its
claims.
CASES QUESTIONING THE CONSTITUTIONALITY OF THE
BAN
Pruitt v. Cheney
In Pruitt v. Cheney, the Ninth Circuit ruled that the
appellate courts in Ben Shalom and Woodward had failed to
adequately apply recent Supreme Court cases in their
decisions.
It had long been the law that the government could
not discriminate against a group of citizens just because of
other peoples' hostility to the group. U.S. Dept. of
Agriculture v. Moreno, 413 U.S. 528 (1973). In Palmore v.
Sidoti, 466 U.S. 429 (1984), the Supreme Court expanded
on that point by ruling that a state court could not take
custody of a child away from a white mother because she
was living with a black man. The court ruled that
constitutional equal protection prohibited the government
from giving effect to private prejudices of others by
discriminating against the woman.
The next year, in Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985), the court said that Palmore was not
limited to race or other "suspect" classifications. Ruling
that a Texas town could not zone out a group home for the
mentally disabled in a residential neighborhood, the court
said that the fears of neighbors, and even the belief that
some individuals might harass those living at the home,
were not permissible bases for discriminating against an
unpopular group.
The Pruitt court found that when the military offered
an explanation for the threat to order and morale posed by
lesbians, gay men and bisexuals, it had simply asserted that
non-gay members of the service "despise/detest" gay
people and that their hatred would lead to actions which
would harm order and discipline. In light of Palmore and
Cleburne, the Pruitt court ruled that the Federal
Constitution did not allow the government to give effect to
private prejudices by creating a policy that catered to that
prejudice.
In Cleburne, the Supreme Court also held that courts
may not simply accept any government argument that
discriminating against an unpopular group will help achieve
some legitimate purpose. Rather, the Court required the
government to provide a real factual record for its claims.
Based on the Cleburne ruling, the Ninth Circuit in Pruitt
explained that if the military had some explanation for its
policy that did not rely solely on the prejudice of others,
the military would have to provide some factual support for
its claim before the district court.
The Solicitor General, under the Bush
Administration, asked the Supreme Court to review and
reverse the Pruitt decision. The Supreme Court declined
to hear the case, thus allowing the case to stand. The case
is currently before a district court and is stayed until after
July 15th.
Meinhold v. Department of Defense
The district court in the case of Meinhold v.
Department of Defense was the first court in the Ninth
Circuit to consider the validity of the military's policy
following the principles set forth in Pruitt. The Meinhold
court struck down the ban because the military was unable
to come up with any nonprejudicial factual basis for its
policy. As the court noted, the military's own studies of its
policy -- the 1957 Crittenden Report, and the 1988 and
1989 PERSEREC Reports -- found there was no factual
basis for the policy of excluding known gay men, lesbians
and bisexuals from the armed services. The Meinhold
court issued an injunction against the discharge of
individuals based on sexual orientation. The Ninth Circuit
has ruled that this injunction is consistent with the
temporary compromise currently in place, which puts
individuals who acknowledge gay status into the standby
reserve.
CONCLUSION
As the Pruitt and Meinhold decisions demonstrate,
once the "hatred of others" rationale is eliminated under
the Supreme Court requirements of Palmore and Cleburne,
and the military is required to show a factual basis for the
policy, it is very difficult for the government to argue that
the policy is constitutional. This is the case even when the
government simply has to show a "rational relationship" for
its policy. If the courts ultimately accept a stricter
standard than simply "rational review," the military's ban is
even more likely to be struck down as unconstitutional.
* * * *
Prepared by the Legal/Policy Department of the Campaign
for Military Service. 2707 Massachussetts Ave, NW
Washington, DC 20009. (202) 265-6666.